Green v. Kestel et al

Filing 32

DECISION AND ORDER screening Plaintiff's third amended complaint, denying 30 Motion for Protective Order, and denying 31 Motion to Appoint Counsel without prejudice. The Clerk of Court is directed to file Plaintiff's papers and to cause the U.S. Marshal to serve copies of the summons, third amended complaint, and this Order on Defendants, and to forward a copy of this Order to the Erie County Attorney. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 5/31/17. (JPL)-CLERK TO FOLLOW UP-

PS
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ANTWAN M. GREEN,
Plaintiff,

DECISION AND ORDER
v.

6:15-CV-06554 EAW
CHIEF HARRIS, SERGEANT WEBSTER,
ORVILLE, Nurse Practitioner, JOHN DOE
HOLDING OFFICER, NURSE JANE DOE,
SERGEANT CARNEY, SERGEANT ANDERSON,
SERGEANT SMACNICK, D. BROWN, Holding
Center Officer, SHERMAN, Holding Center
Officer, JARNOT, Holding Center Officer, and
LINEN DEPARTMENT DEPUTY,
Defendants.

Plaintiff Antwan M. Green ("Plaintiff'), while he was an inmate confined at Erie
County Correctional Facility, filed multiple civil actions asserting claims under 42 U.S.C.
§ 1983 concerning the conditions of his confinement at the Erie County Holding Center
as a pre-trial detainee.

By Order dated October 27, 2015, two other actions were

consolidated with this case. (See Dkt. 4). Plaintiff was directed to incorporate the claims
from all three actions into one amended complaint. (Id. at 8-9). Plaintiffs first amended
complaint was stricken by the Court (see Dkt. 13 ), and he filed a second amended
complaint on March 30, 2016 (Dkt. 16).
The Court reviewed the second amended complaint pursuant to 28 U.S.C.
§§ 1915(e) and 1915A, and, by Order dated August 17, 2016, dismissed some claims and

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allowed others to go forward. (See Dkt. 23 ). The following claims have been permitted
to proceed: ( 1) due process claims against Defendants Webster and Harris for preventing
Plaintiff from calling witnesses on his own behalf during a disciplinary hearing; (2) cruel
and unusual punishment based on conditions of confinement claim against Defendants
Anderson, Carney, and Harris for the unreasonably cold temperature of Plaintiffs cell;
(3) conditions of confinement claim against Defendants Jarnot and Linen Department
Deputy for their failure to provide Plaintiff with a sanitary blanket; (4) unsanitary
conditions claim against Defendant John Doe Holding Center Officer; (5) denial of
medical treatment claim against Defendants Orville and Nurse Jane Doe; (6) violation of
equal protection rights claim against Defendant Nurse Jane Doe; and (7) retaliation and
condition of confinement claims against Defendants Sherman, Smacnick, Nurse Jane
Doe, and Brown. (See Dkt. 23). The Court granted Plaintiff leave to amend a denial-ofaccess-to-courts claim, based on alleged restricted access to legal books and research, and
directed Plaintiff to file a third amended complaint incorporating all his permitted claims.
(See id.).

I.

Plaintiff's Third Amended Complaint
Presently before the Court is Plaintiffs third amended complaint.

(Dkt. 29).

Upon review pursuant to 28 U.S.C. §§ 1915(e) and 1915A, the Court finds that Plaintiff
has complied with the Court's directive to incorporate all of his remaining claims against
the remaining Defendants into one pleading.
To the extent that Plaintiff has incorporated some of the factual allegations related
to claims that were previously dismissed, the Court liberally construes these repeated
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allegations as a request by Plaintiff to reconsider the dismissal of said claims. The Court
has reviewed this request and declines to reconsider its dismissal of these claims.
The Court further notes that although Plaintiff was granted leave to amend his
access-to-court claim, he has not done so. Therefore, that claim is dismissed. In all other
respects, the third amended complaint is permitted to proceed in accordance with the
Court's August 17, 2016, Order. (See Dkt. 23).
II.

Valentin Request

Additionally, in the third amended complaint, Plaintiff lists three Defendants as
Linen Department Deputy, Nurse Jane Doe, and John Doe Holding Center Officer. In
light of Plaintiffs uncertainty as to the names of these Defendants, pursuant to Valentin
v. Dinkins, 121 F.3d 72 (2d Cir. 1997), the Court requests that the Erie County Attorney

ascertain the full names of these three Defendants. The Erie County Attorney is also
requested to provide the addresses where these Defendants can currently be served. The
Erie County Attorney need not undertake to defend or indemnify these individuals at this
juncture. This Order merely provides a means by which Plaintiff may name and properly
serve Defendants as instructed by the Second Circuit in Valentin.

III.

Plaintiff's Other Motions

In addition to filing the third amended complaint, Plaintiff has filed two motions: a
Motion for Protective Order (Dkt. 30), and a Motion for Reconsideration of his request
for the appointment of counsel (Dkt. 31 ). Plaintiff fails to state a basis for either motion;
he also fails to provide any argument or factual support for either motion. (See Dkt. 30;
Dkt 31).
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Plaintiff previously updated his address with the Court, indicating that he has been
released from custody. (See Dkt. 28). Therefore, his motion for injunctive relief against
Defendants is rendered moot. See Pugh v. Goard, 571 F. Supp. 2d 477, 490 (S.D.N.Y.
2008) (finding a plaintiff's claims for injunctive and declaratory relief against prison
officials moot in light of the plaintiff's release from prison).
Plaintiff's motion for reconsideration is denied without prejudice.

The third

amended complaint has not been served, nor has any Defendant appeared in the case. As
such, Plaintiff's request for the appointment of counsel is premature. See Pennefather v.
NY State Unified Court Sys., No. 08 CIV. 0098(DAB), 2008 WL 2276521, at *l
(S.D.N.Y. June 3, 2008) (noting that a motion to appoint counsel was premature because
service of the complaint had not been completed).
ORDER

For the foregoing reasons, IT IS HEREBY ORDERED, that the Clerk of Court is
directed to file Plaintiff's papers and to cause the United States Marshal to serve copies
of the summons, third amended complaint, and this Order upon Defendants Harris,
Webster, Orville, Carney, Anderson, Smacnick, Brown, Sherman, and Jarnot; and it is
further
ORDERED, that the Erie County Attorney is hereby requested to produce the
information specified above regarding the identities of Defendants John Doe Holding
Center Officer, Nurse Jane Doe, and Linen Department Deputy within 30 days of the date
of this Order. The information should be sent to the Pro Se Office, U.S. Courthouse, 100
State Street, Rochester, New York 14614; and it is further

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ORDERED, that once this infonnation is provided, the third amended complaint
shall be deemed amended to reflect the full names of those Defendants, summonses shall
be issued, and the Court directs service on those Defendants; and it is further
ORDERED, that the Clerk of the Court is directed to forward a copy of this
Order to Michael A. Siragusa, Erie County Attorney, Department of Law, Edward
A. Rath County Office Building, 95 Franklin Street, Rm 1634, Buffalo, New York
14202; and it is further
ORDERED, that pursuant to 42 U.S.C. § 1997e(g)(2), Defendants are directed to
answer the third amended complaint.
SO ORDERED.

Dated: May 31, 2017
Rochester, New York

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